Identifying Anticompetitive Agreements in the United States and the European Union: Developing a Coherent Antitrust Analytical Framework

50 Pages Posted: 23 Feb 2017 Last revised: 3 Apr 2017

See all articles by Alison Jones

Alison Jones

King's College London – The Dickson Poon School of Law

William E. Kovacic

George Washington University - Law School; King's College London – The Dickson Poon School of Law

Date Written: February 17, 2017

Abstract

Commentary in both the US and the EU has repeatedly debated whether, and when, it is more efficient to use “rules” or “standards” to determine the legality of conduct subject to the antitrust laws and how such rules or standards should be formulated. This paper concentrates principally on the question of how this debate impacts on the analytical framework for identifying infringing agreements in the US and EU. It sets out the view that the question of how agreements are to be assessed under both the US and the EU jurisprudence is unduly opaque. Confusion as to, in particular, the role and scope of per se rules, the role and scope of ancillary restraint doctrines, and how competing anti- and procompetitive effects of mixed agreements are to be balanced against each other have led to excessive complexity in the system.

The paper considers what factors might shape development of a coherent and optimal framework for antitrust analysis in a jurisdiction. Once these factors have been set out, it examines how US and EU competition law have approached the issues identified in relation to the appraisal of agreements and what features of each system have moulded the developments there. It concludes that both systems require some development to create more intelligible frameworks based on common concepts rather than historical categories of antitrust analysis and, further, that competition agencies could play an important part as catalysts in this progress.

Keywords: antitrust analysis of agreements, rules and standards, per se rules, ancillary restraints

JEL Classification: K21, L40, L41, L42

Suggested Citation

Jones, Alison and Kovacic, William E., Identifying Anticompetitive Agreements in the United States and the European Union: Developing a Coherent Antitrust Analytical Framework (February 17, 2017). Antitrust Bulletin, Forthcoming; TLI Think! Paper 57/2017; GWU Law School Public Law Research Paper No. 2017-12; GWU Legal Studies Research Paper No. 2017-12; King's College London Law School Research Paper No. 2017-17. Available at SSRN: https://ssrn.com/abstract=2919312 or http://dx.doi.org/10.2139/ssrn.2919312

Alison Jones (Contact Author)

King's College London – The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

William E. Kovacic

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202.994.8123 (Phone)

HOME PAGE: http://www.law.gwu.edu/faculty/profile.aspx?id=1731

King's College London – The Dickson Poon School of Law

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

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